Wednesday, August 03, 2016

A Father Reflects on the Significance of Hillary Clinton's Nomination for His Two Daughters

by Michael Dorf

My daughters are spending three weeks at a sleepaway summer camp. Below is a very lightly edited version of the letter I sent to my older daughter last Friday, after the DNC ended. (The reference to the Natural Born Citizenship Clause is occasioned by the fact that she was born in China. Prof. Colb and I adopted her when she was one year old. Thus, she is ineligible to be president, although her younger sister, who is our biological daughter, is eligible.) I'm publishing the letter on the blog because I thought it might be of more general interest.

Dear [Daughter],

This past week was the Democratic National Convention. There were a lot of great speeches. Michelle Obama was terrific. I thought the best speech was by President Obama, who wove together his own story, the story of America as a land that welcomes people of all backgrounds, and the danger that Donald Trump presents. At one point, when President Obama mentioned Trump, some people in the audience started to boo. The president said “don’t boo, vote.” I sure hope they do, because Trump as president would be a slap in the face to so many people. You shouldn't worry too much on our own behalf. Our family would be shielded from the worst effects of Trump's madness, because Trump's campaign has mostly gone after other groups, but a Trump victory would, at best, be a stain on our country.

Hillary Clinton also gave a powerful speech. She is not a natural speaker in front of a big crowd in the way that President Obama is or that her husband, former President Bill Clinton is. And as you know, mommy and I have not always been her biggest fans. In 2008, we supported Obama for the Democratic nomination, because we knew him from law school and knew what an extraordinarily talented and decent human being he is. We also thought—and continue to think—that Hillary is too quick to want to use military force. We came to the speech thinking we would certainly vote for and support Hillary, but that in a perfect world the 22nd Amendment would not prevent Obama from running for a third term. And there were aspects of the Bernie Sanders campaign that we preferred.

But with all of that, Hillary displayed two qualities that make me think she will win the election and be a good, perhaps even an inspirational president: toughness and compassion. She was introduced by her daughter Chelsea Clinton and by a short documentary film by Shonda Rhimes that was narrated by Morgan Freeman. The film and Hillary’s speech both included a story about how when Hillary was four years old, she was being bullied by some neighborhood kids. She came home crying, but her mother (who had been abandoned by her own parents as a young girl) told her to go back outside and work it out. Hillary learned two lessons from that episode: first, stand up to bullies; and second, have compassion for people who are being bullied. The relevance of these lessons to the campaign against Trump was obvious.

It was also moving to see the first woman nominated to the presidency of a major American party. There was a lot of talk about how “America is the greatest nation on Earth,” which is puffery. Other countries do a lot of things better than we do, including promoting women’s equality. England, India, Israel, Pakistan, and many other countries had women in the top government position long before we will. Still, if this isn’t necessarily the greatest country on Earth in all respects, it’s our country. It’s good to see barriers broken. And while there is a stupid provision of the Constitution that says that you can’t be president—because you became a citizen when you were one rather than at birth—knowing that we probably will soon have a woman president gives me greater faith in all of the opportunities that lie ahead for you and your sister.

6 comments:

Let's change that provision. I think arguably equal protection principles would hold it is already unconstitutional. But, a general amendment to deal with various voting issues would be useful & probably something with some bipartisan agreement.

I don't think, Joe, that a provision of the Constitution can itself be unconstitutional. Unless you think the natural-born citizen clause has been repealed? That is theoretically possible, but usually repeals are much more specific, besides which, I believe on the current state of equal protection doctrine it's constitutional for states to disqualify, at least, aliens from holding office.

I think that the equal protection component of the Fifth Amendment, which amended the Constitution, could be used to challenge a classification by alienage. Perhaps, some other amendment to the Constitution, which can override what came before (see, e.g., how state immunity has been affected by the 14A). The "repeals are much more specific" is not some hard and fast rule or fixed in stone.

The "current state of equal protection doctrine" changes over time. I said "principles" not "the current state of equal protection doctrine." Anyway, I realize it's a stretch. But, so were various other things once upon a time that are now accepted, down to basic sex and sexual orientation equality principles.

There is a "political function" exception, if one that included some split opinions, accepted by the Supreme Court's understanding of illegitimate classifications by alienage. But, even there, it's "aliens" not people who were aliens when they were one. Naturalized citizens generally would still have the right to hold office from my understanding. Plus, just to toss it out there, the outer limits of "office" is somewhat unclear (notary publics not included -- BERNAL v. FAINTER).

Just a quibble: The fact that India and Pakistan had women at the tops of their governments doesn't give a very complete picture of the status of women there, given the issues with rape and honor killings, etc. Indeed the fact that those two specific women were chosen says much more about the class structures and dynastic politics of those countries than about their progress in sexual equality.